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Judgment
Appeal against Order No. 234 of 1923. The application to the District Munsif in the case was by the insolvent and was presumably u/s 52 of
the Provincial Insolvency Act V of 1920. The District Munsif dismissed it on the short ground that it was not an application by the Official
Receiver. The insolvent went up to the District Judge, who, purporting to exercise the power of an insolvency Court, and presumably with the view
of ensuring that the executing Court acted properly u/s 52, set aside the execution sale. Neither before the District Munsif nor before the District
Judge was there any prayer by the applicant to hand over the property to the Receiver. It is difficult to see how the case could come u/s 52 at all.
Further whether the term "" Receiver "" used in Section 52 is restricted to Receiver appointed after the adjudication, or will apply to an interim
Receiver appointed u/s 20, and whether the application under that section is restricted to one by the Receiver or may be made by the insolvent or
anyone else both of which points raise questions of difficulty which it is not necessary to answer in this case, it is perfectly clear to us that an
application u/s 52 to the executing Court to deliver property . to the Receiver can only be a valid application if the receiver has been clothed by the
insolvency Court with powers to take possession of the insolvent''s property. To hold otherwise would open the way e.g., for such a delivery of
the insolvent''s property to an interim Receiver in the teeth of a refusal by the Court to confer on him powers to take delivery. In the present case
the interim receiver was not clothed with powers to take possession of the insolvent''s property. In this view the District Munsif''s order was
correct, the District Judge had no jurisdiction to interfere :(1) because there was no request before him that the property was delivered to the
Receiver and (2) because the Receiver was not authorised to take delivery. The order must be set aside and the District Munsif''s order restord
with costs.
A.A.A.O. No. 2 of 1924: It follows that the sale should have been confirmed by the District Munsif, as no valid application to stop it had been
put in before him within 30 days of the sale.
We allow the appeal. The appellant will get his costs in the lower Courts and not in this Court.